Abstract

This article presents the first in-depth study of patent cases appealed by pro se litigants in the U.S. Court of Appeals for the Federal Circuit. In the 127 pro se patent appeals decided from 2006-2015, the Federal Circuit treated pro se appel-lants more favorably than represented appellants in important procedural and substantive ways. The Federal Circuit, on average, decides pro se patent appeals more quickly and with more detailed explanation. Pro se appellants almost always receive written opinions from the court, while represented appellants get one-word summary affirmances (“Affirmed.”) as much as half the time. Despite being is-sued faster, the opinions in pro se cases are often of similar length, detail, and quality to the counterpart opinions issued months later for represented parties. And the court’s mere act of writing an opinion, as opposed to issuing a summary affirmance, provides a substantive benefit to the appellant for purposes of further judicial review—it is far easier to identify factual and legal errors made by the court when the court explains its reasoning.

This disparate treatment might suggest that the pro se patent appeals are more meritorious or raise more substantial legal questions, but that does not ap-pear to be the case. Pro se appeals are much less successful on the merits than appeals with both parties represented by counsel. And despite so many written opinions being issued to affirm pro se appeals, nearly all the opinions are desig-nated as nonprecedential because they do not add anything significant to the body of law. The Federal Circuit thus spends a disproportionate amount of time and effort disposing of pro se patent cases, even though the merit and the legal signif-icance of those appeals is minimal. Ostensibly, this is done to ensure that pro se appellants, who are not permitted to orally argue their cases, feel that their cases have been fully heard.

Meanwhile, the Federal Circuit is being inundated with an unprecedented flood of patent appeals raising critical questions about the interpretation and im-plementation of the 2011 America Invents Act. To stay on top of this docket, something has to give. Thus far the Federal Circuit has managed its increasingly heavy case load by offsetting it with more summary affirmances in cases where both parties are represented by counsel, but that may not be enough to strike a comfortable, sustainable balance. Indeed, the court may already be signaling that it has reached a tipping point where it can no longer presume to write opinions for pro se patent appeals.

The data in this study suggests that increased reliance on summary affir-mances in pro se cases may not prevent all such parties from understanding that their cases were fully heard. Roughly half of se patent appellants demonstrate a significant measure of legal sophistication or familiarity with the court, as evi-denced by their briefing. The data also shows that the Federal Circuit has strayed far from its own rules for how to draft nonprecedential decisions, which should be short and to the point. About half of the nonprecedenital opinions in this study are as long or longer than precedential opinions, and include extraneous background information that the parties are presumed to know.

To be clear, it is commendable for the court to want to go to such lengths to make pro se appellants feel heard. But even though the pro se patent docket is small (about 12-13 cases per year), those efforts add up and tax the court’s scarce resources in ways that may not appreciably further that commendable goal, and that necessarily hinder the achievement of other important goals. Recognizing cer-tain patterns in the pro se patent docket provides a fresh perspective that justifies a departure from a rigid one-size-fits-all approach to pro se appeals. By consid-ering each pro se case individually, sometimes it may make the most sense not to write, or at least to write less.